THE DEVELOPMENT OF CRIMINAL LAW
Criminal Law in Ancient Times
• In Athens and Rome we are talking about a highly stratified society, where slaves did most of the work.
– Each of these societies displayed different forms of economic development, which in turn shaped their definitions of and responses to offending behaviors.
– Israel - law and criminal justice system reflected the deep religious influences
• A common theme within these societies was that a harm was essentially a harm against an individual or family, rather than a harm against the state.
• The initiation of a criminal case depended upon the initiative of the person wronged or, if he had been killed, by his family or kin folk.
– Often a system of wergild applied where the families of the victim received some sort of compensation – even in homicides if act was not intentional
• group decisions seen as superior to the judgement of any one individual
Emergence of Criminal Law in Athens
• Private vengeance was replaced by the notion that the entire community was also victimized.
• This idea in turn evolved into the notion that the "state," which theoretically came to represent the entire community or "the people," was also harmed and became authorized to take action.
• In Athens the criminal law emerged during the 6th century B.C.
• Athens was ruled by a small aristocracy that controlled a very large citizenry - the peasant proprietors, the artisans, a lower class of "freeman," plus an even lower class of slaves.
• The discontent this situation produced led the rulers to compromise (they were legitimately afraid of a revolution).
• So they created a system of "popular courts" and provided for appeals and granted certain rights to every citizen, with the right of all citizens to initiate prosecutions
• Of course, not all citizens were equal in a social sense
• Hard to have equal protection in an unequal society
Criminal Law in Rome
• 6th Century BC - Law of the Twelve Tables
• the codification of Roman "customary law"
• A "private criminal law" in the sense that it was based upon the notion that a victim could seek private vengeance against an offender.
• guaranteed certain rights, but mostly to the members of the clans that had founded the Roman Republic
• As Rome grew from a rural agricultural community to a mighty city-state, the existing law under the Twelve Tables proved to be inadequate
– Too many conflicts between contending classes
• Laws did not provide much protection to the growing number of merchants, whose wealth was increasing at the expense of small peasants and artisans.
• The ruling class clearly shaped the law in their favor, yet claimed that this law and legal system was jus gentium or a natural law or law that protected all the people.
• The adoption of the jus gentium "reflected the conquest by the new Roman ruling class of its foreign and domestic enemies"
Acephalous or "Non-State" Societies and Law
• Prior to the Normal Conquest in the 11th century, many societies were under the "rule of custom"
• Acephalous societies - "without a head," that is, with no identifiable ruler.
– No centralized state or government, nor any written law.
– Human relations based upon personal relationships that in turn are based upon mutual obligations and respect.
• Harms handled in the following ways:
– blood revenge – mostly in homicide cases
– retribution – returns the harm done with a similar act
– ritual satisfaction – public shaming
– restitution - payment in kind (most common)
• Restitution was most common since it assumed some form of continuing relationship between the victim and the offender, or at least between the two families
Criminal Law in Medieval Times
• The “dark ages” emerged around 426AD when the Roman Empire collapsed
• Political authority fell into the hands of local kings and landlords and the age of feudalism followed
– Feudalism – where poor farmers and merchants were forced to work for some powerful lord, who provided security to them in return for either services or taxes.
• new view of humans - based upon his individual importance as a member of a kindred group, a clan
– Criminal law based upon kinship, rather than a “state” authority
• A “manorial society” existed until around the 11th century.
– The manor was self-sufficient, with little trade outside its boundaries, not unlike the slave system in the southern United States
– A more modern version is the “sharecropping” system
– Not by accident, several prisons in the South were patterned after this, called “Plantation Prisons” – more about this later in the course
• While most people were accustomed to Roman law, each group had its own customary law as well.
– Eventually most legal principles of Roman law were replaced by local customary laws within the manors.
The Norman Conquest
• 10th & 11th century England was divided into about eight large kingdoms each with some form of centralized authority, namely "tribal chiefs."
• In time they were replaced by kings who became both landlords and military leaders of their "kingdoms."
• Compensation for offenses became the responsibility of the king, lord or bishop, rather than the kinship group
• In 1066 William the Conqueror led the Norman Invasion
• William unified declared himself the supreme "landlord" of the country.
• Land which formerly belonged to the several groups or tribes and then different landlords, now belonged to the king.
• The order of custom became the "rule of law."
William “legitimated” his “rule of law”
• personal transgressions became "crimes" – crimes against the “state”
• Criminal law and criminal justice came to be based upon three key ideas
– An offense against an individual is also an offense against the "public order" and the "state";
– The methods of punishment shall be administered by the state and not solely by the victim;
– The protection the law provides theoretically should apply to all citizens, not just particular groups.
• Among the “reforms” included an independent and unbiased set of bureaucratic government officials to handle disputes.
– Justices of the Peace, use of “peers” as “jurors”
– the king as sovereign, sent by God
– He was answerable only to God. To question the king (or the state or the law) was to question God. The king's law stood as the ultimate morality
• Law became an ideological force that justified the rule by a few
Criminal Law as an Ideological System of "Legitimate" Control
• Formal law serves to legitimate and add to the hegemony of a ruling class
– Majesty - excessive formality of the legal system, pomp and ceremony, etc.
– Justice - "equal justice for all"
• The hanging of a man of wealth, procedural rules enabled some accused persons, even poor people, to be set free on a "technicality.“
• “rule of law” and not wealthy men
– Mercy – pardoning of the condemned (to show how kind the rulers are)
The Concept of "Crime"
• “Crime” and “sin” and mens rea
– guilty mind – only applies to individuals not groups
• Tribal law
– collective responsibility, harm against an individual, family, compensation or feud
• State law
– individual responsibility, harm against the state, territorial ties, punishment
Crime & Private Property
• Centralization of power brought with it inequality
• Formal law came about only with the rise of "private property."
• Jeremy Bentham: "Property and law are born together and die together"
Laws of Theft
• Carrier Case (1473)
– Regulation of commerce required a new view of “theft”
– Supported rising merchant class, often called the bourgeoisie - Marx did not invent this term!
• Laws reflect and reinforce a particular economic order
• Vagrancy laws – regulating “surplus labor” that is produced by fluctuations in a capitalist economy (based upon a wage system)
– Today many other laws (e.g., drug laws, public order laws) serve this function
– Reflection of class conflict – owners vs. workers
Statutes of Laborers (1349)
• Helped to regulate labor by forcing workers to accept the prevailing wage or go to the “workhouse”
– which in time evolved into the prison
• "vagrants," "rogues," thieves, "gypsies, Irishmen, fortune tellers, university scholars found begging without permission, and peddlers – all covered by vagrancy laws
The Importance of Capitalism
• Capitalism produces certain social conditions to which people respond in efforts to survive and then are often punished
– “We punch their eyes out and then reproach them for their blindness” – paraphrasing John Milton
Emergence of Criminal Law in America
• Religious foundation – puritan New England
• “City of God” – leaders “spoke to God” and granted power through divine authority
• Offenses included idolatry, witchcraft, blasphemy, bestiality, sodomy, adultery, and cursing or smiting a parent.
• even laws specifically against Quakers
• Persecution of Quakers and Salem witchcraft trials
• Shift from religious-based offenses to property
• CJ system helped to buttress the new “bourgeois” order with emphasis on property and putting down riots
– Alien and Sedition Acts (1798)
– Ideology or “rule of law” (Bill of Rights)
– CJ system became "the strong arm of the stratification system"
Racism & Law
• Native Americans and slaves had to be kept in their “proper place” & the legal system helped
– Lone Wolf v. Hitchcock - tribes had no title to the land
– Rape law in Kansas (white man raping white woman gets 5 years, but black man raping white women gets castrated)
– "separate but equal" - upheld by the Supreme Court in Plessy v. Ferguson in 1896
• Exclusion Law against Chinese
– Between 1882 and 1902 Congress passed a total of 13 discriminatory laws against the Chinese people
• Same for Mexican-Americans in early 20th century
• Internment of Japanese-Americans during WWII
– Concentration camps in many places, such as Manzanar (off HWY 395 in California)
War on Drugs
• The key points to remember in this part of the chapter include:
– Every drug law has targeted drugs used mostly by the poor and racial/ethnic minorities
– Crack vs. Powder cocaine
– Sentencing guidelines
– $50 billion spent in 2006
• Specific laws to recall include:
– Pure Food & Drug Act
– Harrison Act
– Marijuana Tax Act
– Comprehensive Drug Abuse and Prevention Act
– Anti-Drug Abuse Acts of 1986 and 1988
Japanese “Relocation Camps” - Selected Graphics